Say It Ain't So, Joe

When Shoeless Joe Jackson was charged with participation in a plot by several Chicago White Sox players to throw the 1919 World Series, he was (or so the story goes) confronted by a young fan who begged him, "Say it ain't so, Joe."

I'm not quite as enamored of Joe Lieberman as I am of Joe Jackson (Jackson had a much higher batting average) but I have nonetheless been partial to Lieberman since I came to know him during our service together in Congress. I have long considered him a man of principle and of sound values. I have also considered him a man of good judgment.

I'm not writing today to announce that my views of Joe Lieberman have changed -- I still like him -- but his most recent emergence into the public spotlight has not been one to earn him credit.

Lieberman has announced, in the wake of an attempted car bombing in New York, that he intends to enact legislation that would effectively strip terrorists of their United States citizenship. A couple of clarifications, though. His legislation would not actually strip terrorists of citizenship because the government has no constitutional right to take away the citizenship of any person who has it. But the law does permit a finding that a person has voluntarily revoked his or her citizenship, whether overtly or constructively (constructively if one has joined the military of a government at war with the United States or committed treason or sworn an oath of allegiance to a foreign state). What Mr. Lieberman says his bill will do is extend the same constructive finding (that a person intended to give up citizenship) if he or she has provided material support to an enemy.

But here's where it all goes haywire, and dangerously so. First, his legislation is not just aimed at "terrorists" or their supporters; it would strip away citizenship (by finding that one had intended to surrender it) even if one had no intention of doing so. For example, if one were to work with a "terrorist" organization to push it to renounce the use of violence and adopt the peaceful pursuit of its goals. Or if one were to provide support for the building of a hospital or a child-care center for an organization that has been labeled "terrorist" but is not in conflict with the United States. An individual who contributes to a fund to repair a medical facility in Gaza might thus fall into the category of persons Mr. Lieberman's legislation would construe as having chosen to renounce their American citizenship.

This determination of intent to surrender one's citizenship would not be made in a court of law but (a) by a bureaucrat in the State Department and (b) on the basis of "suspicion," the suspicion needing only to exist in the mind of the bureaucrat. Given the political pressure to be proactive in safeguarding the homeland, one can easily imagine that it would be easier, and safer, to determine that one intended to revoke one's citizenship than to correctly note the tenuous nature of a contention that one was engaged in an assault on the security and liberties of fellow Americans.

But it's still better to be cautious, right? Better to inconvenience one person than to put the rest of us at risk? But we're not talking about inconvenience here: the triggering suspicion is not like a local policeman making an arrest and a local district attorney filing charges. In that case, the accused could avail himself of the opportunity to prove that he had no desire to harm Americans and no interest in furthering the bloody ambitions of America's enemies. The government's evidence could be weighed. The grounds for the suspicion could be evaluated. People who are as patriotic and as committed to our safety as the State Department bureaucrat would judge whether to kick the guy out of the country, demote him to the status of non-citizen, with the attendant loss of a citizen's rights and privileges (including those citizens enjoy when accused of a crime), or conclude that he is innocent.

Remember, the goal must be to take the passports of those who are actually guilty of having placed themselves in the ranks of our enemies. When one determines "guilt" merely by dint of the suspicions of a government agent, one raises worrisome specters of Stalinist apparatchiks. I am pretty much like the rest of you: if somebody is plotting to blow up a car in Times Square or plant a bomb on a subway, the only "country" he is entitled to is a small cell behind stout iron bars. If he succeeds in killing, I'm ready to send him to the same fate. But only if he, as an American citizen, has been found guilty in an American court of law under American rules of justice; we don't punish, by death or by exile, the innocent.

Here, then, is the ultimate problem with Joe Lieberman's attempt to look tough. The bureaucratic determination that one's citizenship should be revoked reverses the entire process of achieving justice. When the accused enters a federal courtroom for the first time, on appeal from a judgment already handed down by the federal bureaucracy, the burden becomes his; instead of a trial de novo (starting over), in which case a court would determine innocence or guilt, he would have to prove a negative. Try it sometime.

Why is Joe Lieberman doing this? Why is he making a travesty out of American law and applying the traditional legal systems of a dictatorship to American citizens? Because he wants to deprive that citizen of the rights a citizen would otherwise have in court. He wants to turn the legal process into a modern-day Star Chamber, in which accusation is the same as conviction.

Can a conservative really go along with this? With this ultimate empowerment of the State? With this acceptance of the infallibility of government and the unlimited power of government agents? Let us hope not. John Boehner, the quite conservative Republican leader in the United States House of Representatives, on hearing of Mr. Lieberman's strange efforts, was quick to raise an alarm: isn't it unconstitutional?

Mickey Edwards spent 16 years in Congress and 16 years teaching at Harvard and Princeton. He is a director of The Constitution Project and wrote Reclaiming Conservatism.More

Mickey Edwards was a member of Congress for 16 years and a chairman of the House Republican leadership's policy committee. After leaving Congress, he taught at Harvard for 11 years, where he was voted the Kennedy School's most outstanding teacher, and at Princeton for five years. He currently runs a political leadership program for elected officials as Vice President of the Aspen Institute and teaches defense policy and foreign policy at George Washington University. He has been a weekly columnist for The L.A. Times and The Chicago Tribune and is a weekly commentator on National Public Radio. Edwards served for five years as national chairman of the American Conservative Union and the annual Conservative Political Action Conference. He was one of three founding trustees of the Heritage Foundation. In 1980, he directed more than a dozen joint House-Senate policy advisory task forces for Ronald Reagan's presidential campaign. He is a director of The Constitution Project and has chaired task forces for the Council on Foreign Relations and the Brookings Institution. He served on the American Bar Association task force that condemned President George W. Bush, and his most recent book, Reclaiming Conservatism, was published in 2008.